State v. Pennington

• Decision Date: 26 March 2010
• Docket Number: 278.,No. 100,100
• Citation: 227 P.3d 978
• Parties: STATE of Kansas, Appellee, v. Randall PENNINGTON, Appellant.
• Court: Kansas Court of Appeals

227 P.3d 978

STATE of Kansas, Appellee, v. Randall PENNINGTON, Appellant.

No. 100,278.

Court of Appeals of Kansas.

March 26, 2010.

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Matthew J. Edge, of Kansas Appellate Defender Office, for appellant.

Casey Meyer, assistant district attorney, Jerome A. Gorman, district attorney, and Steve Six, attorney general, for appellee.

Before McANANY, P.J., GREEN and MALONE, JJ.

GREEN, J.

Randall Pennington appeals from a jury conviction of second-degree intentional murder. Pennington raises five issues on appeal. First, he argues that his statutory speedy trial rights were violated. We disagree. Although the trial court erred when it failed to reschedule Pennington's trial within the 90-day period under K.S.A. 22-3402(3), Pennington had previously waived his statutory speedy trial rights. In addition, he acquiesced in the continuance which exceeded the 90-day limited under K.S.A. 22-3402(3). Second, Pennington argues that the trial court abused its discretion in excluding the results of the victim's autopsy report, which showed that he had both marijuana and cocaine in his system when he died. We disagree. There was no showing that the decedent would become violent or the aggressor after having ingested marijuana or cocaine or both.

Third, Pennington argues that the trial court clearly erred when it failed to instruct the jury on the lesser included offense of involuntary manslaughter. Because his actions in striking the decedent were intentional, Pennington was not entitled to such an instruction. Fourth, Pennington argues that the trial court erred in furnishing the jury with a deadlock jury instruction before deliberation. We agree; however, we determine that the instruction was harmless. Finally, Pennington argues that these cumulative errors deprived him of his right to a fair trial. We disagree. Accordingly, we affirm.

In December 2006, Pennington resided in a townhome on North 51st Terrace, Wyandotte County, Kansas. At the time, Monica James, Allan Soverns, Jr. (Monica's boyfriend), and Daethon (Monica's 4-year-old son) also resided in the townhome. Lavirgil DeShawn Jones, the victim in this case, lived nearby. Jones was welcome in the townhome and would often bring his daughter to play Play Station video games with Daethon.

James, Soverns, and Jones made a deal in which Jones would give James and Soverns a Vision card in exchange for one-half of the value in cash. A Vision card is a debit card that can be used to pay for groceries in lieu of traditional forms of food stamps. A few days before December 16, 2006, James withdrew and presented Jones with the money promised under the deal. Nevertheless, despite promises on two occasions, Jones never delivered the Vision card to James and Soverns.

After the Vision card deal failed for a second time, James and Soverns were frustrated and believed that Jones was hustling them. James and Soverns eventually discussed the situation with Pennington; Pennington promised to talk with Jones in an attempt to recover the money. After talking to Jones, Pennington recovered some of the money. Pennington, James, and Soverns decided that after the Vision card incident, Jones was no longer welcome in the townhome.

Around 11 a.m. on December 16, 2006, Jones came to the townhome and apologized about the Vision card incident. At that time, Pennington, James, and Soverns were all in the townhome. James and Soverns were still upset about being cheated in the Vision card deal; they expressed these sentiments to Jones. Soverns told Jones that he was no longer welcome in the home. When Jones refused to leave, Soverns picked up a baseball bat and charged towards Jones as Soverns yelled at Jones to get out of the townhome. In response, Jones threatened to conduct a drive-by shooting on their home. Specifically, James recalled Jones making the following threat: "He said that A.J. better watch himself and that he could have our house shot up, so we better watch that little boy." Jones then left the home, and none of these threats ever materialized.

Later that day, James, Soverns, Pennington, and Daethon decided to travel to Fort Scott, Kansas, to visit Soverns' mother. When the four left the townhome, Jones yelled at Soverns to apologize for the Vision card deal. Moreover, Jones promised to look after the townhome while the group was out of town.

Around 7 to 8 p.m., the group returned home from Fort Scott. When they walked into the home, they saw that their back window had been pried open. They further noticed that their Play Station and several games were missing from the home. James also noted that her jewelry box had been opened. Almost immediately, James, Soverns, and Pennington suspected that Jones had committed the break-in. James called the police to report the break-in. Frustrated, Soverns went outside the home and began yelling and banging the baseball bat on the ground.

In all the commotion, Jones came to the townhome and began to speak with Soverns. When confronted about the break-in, Jones opined that the items had been stolen by a driver of a black truck, which Jones had seen backing up in the townhome's driveway. After learning this information, Soverns went and spoke to another neighbor. The neighbor verified that the black truck belonged to her relatives, who often used the townhome's driveway to back up. She also revealed that while the group was gone, she had seen Jones walking towards the townhome and knocking on the front door.

When Soverns returned to the townhome, he told James and Pennington about the conversation he had with the neighbor. Jones was still present. Soverns, James, and Pennington wanted Jones to stay at the townhome so that police could interview him when they arrived.

Jones made a comment that he would get James, Soverns, and Pennington a gun for their self-protection. Jones then stood up and told them that he was going home and that the police could find him there if they wanted to talk to him.

Then, Pennington came up behind Jones and started hitting him with the baseball bat. When Pennington initially hit Jones on the head, Jones fell to the ground but attempted to get back up. When he did, Pennington hit him again and Jones fell into the coffee table. Pennington continued to hit Jones several more times with the bat while Soverns watched. At one point, Soverns heard Jones gargling on his own blood; even then, Pennington hit Jones again with the bat. After Pennington hit Jones for the last time, Pennington checked Jones' pulse and stated, "Oh, my God, he's dead."

During the entirety of the incident, Jones never attempted to defend himself. In fact, he still had his hands in his pocket when the attack occurred. Before the incident, Jones had never made any threats or brandished any weapons.

After the incident, Pennington asked Soverns to kick in the townhome's front door so that it would appear that Jones had broken in at the home. Soverns did so. When police officers arrived at the scene, James, Soverns, and Pennington lied to the officers, stating that Jones had attempted to break in at the townhome. Nevertheless, Soverns later recanted his oral statements to police and told the police what had actually happened at the townhome.

Pennington was interviewed regarding the incident. During the interview, Pennington admitted to hitting Jones multiple times on the head with a baseball bat because he felt threatened by Jones.

The autopsy of Jones' body revealed that the cause of his death was blunt trauma to the head. In addition, the autopsy revealed two large tears in Jones' scalp, skull fractures on the front and back of his head, as well as bruising and internal bleeding in the brain. The forensic pathologist determined that these injuries were caused when Jones was hit at least two times by an object and that these injuries were consistent with being hit by a baseball bat.

In January 2007, the State charged Pennington with one count of first-degree murder, an off-grid person felony, under K.S.A. 21-3401. Initially, Pennington's trial was set for May 21, 2007. Nevertheless, before trial, Pennington's counsel (William Dunn) moved to withdraw due to Pennington's failure to "satisfy his contractual obligation to counsel." The trial court allowed Dunn to withdraw and appointed Rebecca Brock as new counsel for Pennington. When Brock was appointed, she told the court that she could not be prepared for trial by the May 21, 2007, trial date and requested a continuance. Brock stated that Pennington desired the continuance and would waive his speedy trial rights so that Brock could "be fully prepared and we can have an opportunity to review the case together." After listening to Brock's comments, the trial court confirmed with Pennington personally that he desired the continuance and agreed to waive his speedy trial rights. The State had no objection to a continuance of the proceedings as long as Pennington waived his speedy trial rights. The trial court memorialized Pennington's speedy trial waiver in a journal entry.

During a pretrial conference on May 18, 2007, the trial court scheduled Pennington's trial for September 17, 2007. Shortly before trial, on September 13, 2007, Pennington moved to dismiss the charges against him for violation of his statutory and constitutional rights to a speedy trial. In the motion, Pennington argued that although he waived his speedy trial rights at the preliminary proceeding, the waiver was not unconditional but only given in order to secure a continuance necessary for the preparation of his defense. Pennington further argued that although he requested the continuance, K.S.A. 22-3402(3) required that his trial be rescheduled within 90 days of the original trial deadline. Pennington argued that he was entitled to be brought to trial by August 22, 2007 (90 days from the original trial date of May 21, 2007). The trial court denied Pennington's motion to...